The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. In the Judgement Liggison v Secretary of State for the Home Department JR/2249/2019 The Upper Tribunal today found that Home Office’s fee waiver policy for applications is unlawful. This is a great news for those migrants who cannot afford to pay the fee but can’t show that they are destitute.
Previously Home Office maintained that application fee will not be waived until they lost the case of Omar. Since Omar Home Office introduced the policy that applicants can apply for fee waiver if they can prove they will become destitute by paying the fee or there are any exceptional circumstances.
In this particular case family could prove they would not be able to afford the fee but could not prove they will be destitute because their friends and family were helping them to provide accommodation and support
The UT Judge Blundell in his judgement said that the test should be affordability and not destitution.
Upper Tribunal Judge Blundell:
I come to the clear conclusion that the overall effect of the guidance is to circumscribe unduly the circumstances in which an individual might qualify for a fee waiver. The underlying affordability test is not mentioned expressly.
Paragraph 89
Judge further, whilst declaring home office decision unlawful, said:
“The evidence which had been presented was sufficient, on any rational view, to establish that the applicants were unable to pay a combined application fee of nearly £8000 from their own resources”.
Paragraph 94
It seems common sense has prevailed once again. It was seemingly becoming very frustrating for practitioners like my self to comprehend the fact that how some with a family of four would be able to gather a some of nearly £8000 in application fees and health surcharge when they are not working.
Unfortunately, it seems home office hasn’t taken this decision well and applied for permission to appeal to the Court of appeal. And they were granted permission. This means the current policy is still active unless appeal is withdrawn, abandoned or court of appeal makes a decision. Since cour of appeal is not the fastest in processing hearings there could be months before the outcome is known. For know it is business as usual under the current policy.
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